Non-Corrigé
A a
. 1 Uncorrected
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1998
Public sitting
held on Tuesday 7Aprill998, ut 10 am, ut the Peace Palace,
Vice-PresidentWeeramantry,Acting President,presiding
in the case concerningthe Application of the Vienna Conventionon ConsularRelations
(Paraguayv. UnitedStates of America)
Requestfor the Indication ofProvisionalMeasures
VERBATIMRECORD
ANNEE 1998
Audiencepublique
tenue le mardi7 avril 1998à 10 heures, au Palais de la Paix,
sous laprésidencede M. Weeramants),vice-présidentf,aisant fonction deprésident
en l'affairede l'Applicationde la convention de Viennesur les relations consulaires
(Paraguayc. Etats-Unis d%merique)
Demande en indicationde mesures conservatoires
COMPTE RENDUPresent: Vice-President Weeramantry,Acting President
President Schwebel
Judges Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Registrar Valencia-OspinaPrésents: M. Weeramantry,vice-président, faisant fonctionde présidenten l'affaire
M. Schwebel, président
MM. Oda
Bedjaoui
Guillaume
Ranjeva
Herczegfi
Shi
Fleischhauer
Koroma
Vereshchetin
Mme Higgins,
MM. Parra-Aranguren,
Kooijmans
Rezek,juges
M. Valencia-Ospina,greffierThe Governmentof the Republic of Paraguay isrepresentedby:
H. E. Mr. Manuel Maria Caceres, Ambassadorof the Republic of Paraguayto the Kingdom of
Belgium and the Kingdom of the Netherlands, Brussels, t
as Agent;
Mr. Donald Francis Donovan, Debevoise & Plimpton, New York,
Mr. Barton Legum, Debevoise & Plimpton, New York,
Mr. Don Malone, Debevoise & Plimpton, New York,
Mr. JoséEmilio Gorostiaga, Professor of Law atthe University of Paraguay in Asuncion and
Legal Counsel to the Office of the President of Paraguay,
as CounselandAdvocates.
The Governmentof the UnitedStates of Arnerica isrepresentedby:
Mr. David R. Andrews, LegalAdviser, United States Department of State,
as Agent;
Mr. Michael J. Matheson, DeputyLegal Adviser, United States Departmentof State,
as Co-Agent;
Mr. John R. Crook, Assistant Legal Adviser for United Nations Affairs,United States
Department of State
Ms Catherine Brown, Assistant LegalAdviser for Consular Affairs, United States Department
of State
as CounselandAdvocates;
Mr. Sean D. Murphy, Legal Counsellor, United States Embassy,The Hague,
Mr. Robert J. Ericson, UnitedStates Departmentof Justice,
as Counsel. - 5-
Le Gouvernementde la Républiquedu Paraguay est représenté pan
S. Exc. M. ManuelMaria Caceres, ambassadeur du Paraguayau Royaume de Belgiqueet au
Royaume des Pays-Bas, àBruxelles,
comme agent;
M. Donald Francis Donovan, membre du cabinet Debevoise et Plimpton, New York,
M. Barton Legum, membre du cabinet Debevoise et Plimpton, New York,
M. Don Malone, membre du cabinet Debevoise et Plimpton, New York,
M. JoséEmilio Gorostiaga, professeur dedroità l'universitédu Paraguay àAsuncion et
conseillerjuridique de la Présidencedu Paraguay,
comme conseils et avocats.
Le Gouvernementdes Etats-Unis di4mériqueest représenté par:
M. David R. Andrews, conseillerjuridique du départementd'Etatdes Etats-Unis,
comme agent;
M. Michael J. Matheson, conseillerjuridique adjoint principal du départementd'Etatdes
Etats-Unis,
comme coagent;
M. John R. Crook, conseillerjuridique adjoint chargé desquestions concernantles
Nations Unies au départementd'Etatdes Etats-Unis,
Mme Catherine Brown, conseillerjuridique adjoint chargédes affaires consulaires au
département d'Etatdes Etats-Unis,
comme conseils et avocats;
M. Sean D. Murphy, conseillerjuridique àl'ambassade desEtats-Unis, LaHaye,
M. Robert J. Ericson, du départementde lajustice des Etats-Unis,
comme conseils. -6-
The VICE-PRESIDENT,ActingPresident: Pleasebe seated. The Sittingis open. TheCourt
meetstoday, pursuantto Article 74, paragraph 3, of the Rules of Court, to hearthe observations of P
the Parties on the request for the indication of provisional measures submittedby the Republic of
Paraguay in the caseconceming the Applicationof the ViennaConventiononConsularRelations
(Paraguay v. UnitedStatesofArnerica).
Article 32, paragraph 1,of the Rules of Court providesthat, if the President ofthe Court is
a national of one of the parties to a case, hehall not exercise the functions of the presidency in
respect of that case. The President of the Court, Judge Schwebel,will therefore not be exercising
-
the functions of the presidencyin this case and it falls to me, in my capacity as Vice-President of
(iII
the Court, to do so, in accordance with Article 13 of the Rules of Court.
The proceedings were institutedon 3 April 1998by the filing in the Registry of the Court
of an application by the Government of the Republic of Paraguay against the United States of
America. In that Application, the Govemment of Paraguay refers, as a basis for the Court's
jurisdiction, toArticle1oftheOptionalProtocolConcemingtheCompulsorySettlementofDisputes
to the Vienna Convention on Consular Relations of 24 April 1963.
Paraguay claimsthat theUnited Stateshas actedinviolationof obligationsowedto Paraguay
underArticle 36,subparagraph 1 (b)ofthe Vienna ConventiononConsularRelations. It contends
that,
"In 1992,the authoritiesofthe Commonwealth ofVirginia, one ofthe federated
states comprising the United States, detained a Paraguayan citizen named
Angel Francisco Breard. Without advising Mr. Breard of his right to consular
assistance, ornotifiing Paraguayanconsular officers of his detention, as required by
the ViennaConvention,suchauthoritiestried andconvictedMr. Breard and sentenced
him to death"
and asks the Court for restitutioin integrum,or
"the re-establishment of the situationthat existed beforethe United States failed to
provide the notifications and permit the consular assistance required by the
Convention".
1will now askthe Registrar to read out the decision requested of the Court, as formulated
in paragraph 25 of the Application of Paraguay: The REGISTRAR:
"The Republic of Paraguay asksthe Court to adjudge and declare:
(1) that the United States, in anesting, trying, convicting and sentencing Ange1
Francisco Breard, as described in the preceding statement of facts, violated its
international legal obligationsto Paraguay,in its own right and in the exerciseof
its right of diplomaticprotection of itsnational, as providedby Articles 5 and 36
of the Vienna Convention;
(2) that Paraguay is therefore entitled to restitutio in integrum;
(3) that the United States is under an international legalobligation not to apply the
doctrine of 'procedural default',or anyother doctrine of its internal law, so as to
preclude the exercise of the rights accorded under Article 36 of the Vienna
Convention; and
(4) that the United States is under an international legal obligationto cany out in
conformity withthe foregoing international legalobligationsany future detention
of or criminal proceedings against Angel Francisco Breard or any other
Paraguayannationalinitsterritory, whetherbyaconstituent,legislative,executive,
judicial or other power, whether that power holdsa superior or a subordinate
position in the organization of the United States,and whether that power's
functions are of an internationalor internal character;
and that, pursuant to the foregoing international legalobligations,
(1) any criminal liability imposed on Ange1Francisco Breard in violation of
international legal obligationsis void, and should be recognized as void by the
legal authorities of the United States;
(2) the United States should restore the status quo ante, that is re-establish the
situationthat existed beforethe detention of, proceedingsagainst, and conviction
and sentencing of Paraguay's national in violation of the United States'
international legal obligations took place;and
(3) theUnited StatesshouldprovideParaguaya guaranteeofthe non-repetitionofthe
illegal acts."
The VICE-PRESIDENT: Thank you. Immediately after the filing of the Application, on
3 April 1998,the Agent of Paraguayfiled inthe Registry of the Court a request for the indication
of provisional measures pursuant to Article 73 of the Rules of Court. Paraguay stated, in that
request, that
"By order dated 25 February 1998, the Circuit Court of Arlington County,
Virginia, United States of America, has ordered that on 14 April 1998, pursuant to
Virginia Code 5 53.1-2:34,Mr. Breard be electrocuted or injected with a lethal
substance until he is dead." Paraguayfurther indicatedthat
"Under the grave and exceptional circumstances of this case, and given the
paramount interest of Paraguay in the life and liberty of its nationals, provisional
measuresare urgently needed to protectthe life of Paraguay'snational and the ability
of this Court to order the relief to which Paraguay is entitled: restitution in kind.
Withoutthe provisionalmeasures requested,theUnited Stateswill execute Mr. Breard
before this Court can consider the merits of Paraguay'sclaims, and Paraguaywill be
forever deprived of the opportunityto have the status quo ante restored in the event
of a judgment in its favour."
It askedthe Court totreat the matteras one of "thegreatesturgency" inview of "theextreme
gravity and immediacyof the threat".
1 will now ask the Registrar to read out the provisional measures which the Agent of
Paraguay, in paragraph 8 of the request, asks the Court to indicate.
The REGISTRAR:
"Onbehalf of the Govemment of Paraguay 1therefore respectfully requestthat,
pending final judgment in this case, the Court indicate:
(a) Thatthe Govemment of the United States take the measures necessaryto ensure that
Mr. Breard not be executed pending the disposition of this case;
(b) That the Govemment of the United States report to the Court the actions it has
takenin pursuanceof subparagraph(a) immediatelyaboveandthe resultsofthose
actions; and
(c) Thatthe Govemmentofthe United Statesensurethat noaction is takenthatmight
prejudicethe rights ofthe Republicof Paraguay with respectto any decisionthis
Court may render onthe merits of the case."
The VICE-PRESIDENT: Immediatelyupon the filing of the Request, the certifiedcopy of
the Request for the indication of provisional measures to which reference is made in Article 73,
paragraph 2 of the Rules of Court, was transmitted to the Govemment of the United States.
Immediately upon the filing of the Request, letters were sent by the Vice-President of the
Court to each of the Parties, pursuant to Article 74, paragraph4, of the Rules of Court, drawing
theirattentionto the need toact in sucha way asto enable any Orderthe Court mightmake on the
request for provisional measures to haveits appropriate effects. -9-
According to Article 74 of the Rules of Court, a request for the indication of provisional
measures "shall have priority over al1other cases" and ifthe Court is not sittingwhen the request
is made,it is to be convenedforthwith for the purpose of proceedingto a decisionon that request.
Moreover,the dateof the oral proceedingsmust befixed in such a way as to affordthe Parties the
opportunity of being represented at it. Consequently,following a meeting held between the
Vice-Presidentandthe representativesof bothParties on the date the requestwas filed, the Parties
were informed that the date for the oral proceedingscontemplated by Article 74, paragraph 3, of
the Rules of Court, during which they could present their observations on the request for the
indicationof provisional measures,had beenfixed as 7 April 1998 at 10 a.m.
1 note the presence in Court of Agents and Counsel of the two Parties. The Court will first
hearthe Republic of Paraguay,the Applicant on the merits and the State which has requested the
indication of provisional measures. 1 accordingly give the floor to His Excellency Mr. Manuel
Caceres, Agent of Paraguay.
Mr. CACERES:
1. Introduction
Mr. President, Mr. Vice-President and distinguished Members of the Court. My narne is
ManuelMaria Caceres. 1am the Agent for the Govemment of the Republic of Paraguay in this
case.
2. Attempts to Resolve Dispute
Paraguayrecognizesthe busy scheduleof this Court. Paraguaythereforedeeply appreciates
the Court'swillingness to convene on this request for provisional measures onsuch short notice.
Paraguay furtherrecognizesthat, givenits national, Ange1Francisco Breard,is scheduled to
be executed exactly one week fiom today, the Court mustact with great alacrityif its decisionon
Paraguay's requestfor provisional measures is to have any effect. Again, Paraguay deeply - 10-
appreciates the deliberative efforts that the Court and itsMemberswill nowbe requiredto devote
to Ourrequest.
1thereforewishto assure the Courtthat Paraguayhasfiledthis Applicationandassertedthis
request for provisional measures only afier exhaustive efforts to resolve this dispute without
interventionofthis Court. As detailedin Paraguay'sApplication,Paraguay hasattemptedto resolve
the disputenot onlythroughdiplomaticnegotiations,butalsobytakingtheunusual stepof pursuing
relief through the municipal court systemof the United Statesof America. theseavenues
has provedmiitfül.
Just lastweek,ParaguayandtheUnited Statesresumedefforts intheformof a seriesofhigh-
*
level meetings in Asuncion,which bothparties hoped wouldmake it possibleto avoidrecourseto
this Court.
To Ourregret, however, no resolution has been achieved. Thus, as the Court knows, we
initiatedproceedingslastFriday andhaveaskedthe Courtto indicateprovisionalmeasuresthatwill
ensure that Paraguay'snational is not executed during the pendency of these proceedings.
3. Introduction of Counsel
To make Paraguay'soral submissionin supportof its Applicationforprovisional measures,
1now introduceProfessor JoséEmilio Gorostiaga,Professor ofLaw attheUniversityof Paraguay
W
and Legal Counsel to the Office of the President of Paraguay. 1 also introduce Mr. Donald
Francis DonovanofDebevoise & Plimpton inNew York,andMr. Barton LegumalsoofDebevoise
& Plimpton in New York and Mr. Don Malone as well of the same law firm.
Mr. Donovan will commence Ouroral submissions.
The VICE-PRESIDENT: Thank you. Mr. Donovan,please. Mr. DONOVAN:
II. SUMMARY, TREATIES,AND JURISDICTION
1. Introduction and Summary
Mr. President, Mr. Vice-President, and distinguished Members of the Court.
We are acutely awareofthe time pressure underwhichthe Court takes upthis matter in light
ofthe scheduledexecutionof Angel FranciscoBreard,Paraguay'snational,on 14April, thiscoming
Tuesday. In Ourscheduling meeting on Friday, the Court made it clear that it wished us to keep
Ouroral submissions asbrief as possible, and if at al1possibleto no more than one hour. We will
certainly respect that request.
This case facilitates a succinct submissions it arrives at this Court, the case presents a
straightforwarddisputebothas a matter of the underlying facts and of the governingprinciplesof
law. Webelieveas wellthat the circumstancesrelevantto our request for provisionalmeasures-
mostimportantly,of course,the impendingexecution - are alsoplainto see. Accordingly,we are
confidentthatthe needfor realexpeditioninthis matterwill not inany way compromisetheParties'
opportunityto present their observations to the Court.
1 will begin Paraguay'soral submissionsby setting forth the treaty provisions from which
Paraguay's claims mise and the jurisdictional basis for those claims.
My colleague Mr. Legum will then set forth the facts out of which the claims arise.
1 will then address the Applicationfor provisional measures in light of the present posture
of the dispute.
And finally, Dr. Gorostiagawillbrieflyelaborateonthe importance Paraguayattachesto the
interests at stake in thistter.
2. SubstantiveTreaty Rights at Issue
Paraguaybases itsApplicationinthisCourtontheViennaConventiononConsularRelations,
to which both Paraguay and the United States are parties. The Convention, as this Court wellknows,is the modem cornerstoneof consular rightsandprivileges, but itisacornerstonethat rests
on centuries of accumulated experience.
1
Article (e)of the Vienna Convention includesprotectingthe interestsof a sendingState's
nationalsandprovidingconsularassistanceto nationalsofthe Stateasamongtheconsularfunctions
protectedby the Convention.
Article36 implements certain provisions of Article 5 (e) in the case of detained nationals.
Paragraph 1 of Article 36 provides a detailed procedural mechanismto be followed in al1cases
where a national is detained by another State Party.
Subparagraph (a) of paragraph 1 establishes the guiding principle of free consular
-
access- that is,consular officersofthe sending Statemust havefiee accesstoand communication
withnationals of that State, and nationals must havefiee access to and communicationwith their
consularofficers. That is the very basis of the means by which consular assistance is provided.
Subparagraph (6)establishes the precise procedureto be followed when a national of the
sending State is detained by the competent authorities of the receiving State. Specifically, the
authorities ofthe receiving State must "without delay" informthe national of his or her right to
consular assistance and to have the consul advised of the detention. Further, if the national so
requests,theauthoritiesmust "withoutdelay" informtheconsularpostofthesendingState. Finally,
anycommunicationby the national tothe consularpostmust be fonvardedtothe authorities,n
I
"without delay".
Subparagraph(c) describes the consular officers' proceduralrights with respect to detained
nationals. They have the right to visit and to correspondand to converserrange for legal
representation.
Paragraph 2 of Article 36 providesthat al1of these rights "shall be exercised in conformity
with the laws and regulations of the receiving State". That provision, however, is subjectto the
provisothat "the said laws and regulations must enablefull effectto be givento the purposesfor
whichthe rights accordednder the Article are intended". Thus, while Stateshave the authority - 13 -
to regulate the means by whic'hconsular rights are exercised,the municipal laws and regulations
cannot operateto deprivethe consularofficersorthe nationalof the rights granted; to the contrary,
theproviso - whichwas adoptedoveran alternativethat would have permittedsubstantialdilution
ofthe rights grantedby way of municipallawrequirements - makes clearthatthe municipal laws
must ensure that "full effect" be given to such rights.
1 should point out that Article 36 in Paraguay'sview creates rights not only for the State
party, butalso for the detained national.
.
And as the Court will have noted,Paraguay in this case seeks redress for both categoriesof
rights. It brings the action on its own behalf for violationsof rights owed to it, and it also brings
the action in the exercise of diplomatic protection in light of the breach of duties owed to its
national.
3. Jurisdiction
Finally,the Vienna Convention includesanOptionalProtocol,againto whichboth Paraguay
and the United States are parties.
Article 1 of the Protocol provides that "[dlisputes arising out of the interpretation or
application of the Convention shall lie within the compulsory jurisdiction" of this Court, the
Application may be brought by any party to the dispute being a party to the Protocol.
1will addressjurisdiction morefully after Mr. Legumhas advisedthe Court of the relevant
facts. For the moment, 1simplywishto point out thatParaguayfoundsjurisdiction inthis case on
Article 1of the Optional Protocol.
1turn now to Mr. Legum.
The VICE-PRESIDENT: Thank you, Mr. Donovan. Mr. Legum, please. Mr. LEGUM:
III. FACTS
1. Introduction
Mr. President, Mr. Vice-President and distinguished Members of the Court. 1 will this
morning summarize the facts and proceedings in the United States concerningthe case of Angel
FranciscoBreard.
2. The Crime and the Arrest
Mr. Breard is a Paraguayan national. In 1986,at the age of 20, he left Paraguay to reside
-
in the United States.
-
On 1 September 1992, Mr. Breard was arrested by law enforcement authorities of the
Commonwealth of Virginia,one of the States of the United States. Mr. Breard was suspected to
have raped and murdered a Virginia woman narnedRuth Dickie.
Neither at the time Mr. Breard was arrested, nor at any point thereafter, didVirginia law
enforcementauthorities informhim of his right to receiveconsularassistancefiom the Paraguayan
consulate. Nor did they eversetheParaguayanconsulateof his detention.Neitherthe Virginia
authorities nor the United Statesnd otherwise.
TheVirginia authoritiesdidnotvideParaguaythe opportunityto consultwith Mr. Breard
and arrangefor appropriatealrepresentation. Instead,the Virginiacourt itselfappointed c1unsel
forMr. Breard. The lawyersappointedbythe courtwerefarniliarwiththeVirginia criminaljustice
system.Theyhad no farniliarity,however,with thejustice systemor cultureof Paraguay and were
not equippedto addressmisconceptionsconcemingthe functioningof theAmericanjustice system
that a Paraguayan nationalmight be expected to have.
3. The Trial and Sentence
Virginia broughtMr. Breard to trial and determinedto seek the death penalty.
As a result of the lack of consular assistance, Mr. Breard made a number of objectively
unreasonabledecisions during the course of the criminal proceedings against him. - 15-
Perhapsmostimportant,herejectedapleaofferthattheVirginiaauthoritiesmade beforetrial.
TheVirginiaauthoritiesofferedto recommenda sentenceof life imprisonmentifMr. Breard would
plead guilty to the charges against him. Against the advice of his court-appointed attorneys,
Mr. Breard rejected thatoffer.
Instead, Mr. Breardwaived his right not to incriminate himself, tookthe witness stand and
confessedto the murders. These actions mled out any possibility that Mr. Breard wouldreceive
an acquitta1 and subjected him to one of three possible penalties under Virginia law: life
imprisonment, life imprisonment witha $100,000 fine against him or the death penalty.
Therefore, in rejectingthe plea offer and confessingat trial, Mr. Breard exposed himself to
the risk of a death sentence withoutany possibility of receiving a lighter sentence than what the
Virginiaauthorities had offered to him in the plea offer before trial.
Mr. Breard's decisionto confess and reject the plea offer was based on a misunderstanding
of the United Statesjustice systemand how it differedfromthe Paraguayanjustice system. Where
a confession at trial might appealto the mercy of a Paraguayan court, such a confession in the
Virginiatrial served onlyto seal Mr. Breard'sfate.
Paraguayan consularofficers are familiar with the characteristics of both justice systems,
understandthe misconceptions of Paraguayan nationalsabout the United Statesjustice system and
are skilled in explainingthe differences in terms that Paraguay nationalscan understand. Had a
Paraguayan consular officerbeen permittedto assist Mr. Breard, the officer would have provided
Mr. Breardwith informationthat would have enabledhimto make more informeddecisions in the
conductof his defence.
Evenwith Mr. Breard's confessionattrial, thejury found it aclose questionwhetherto apply
thedeathpenalty. Thejury transmitteda noteto thetrialjudge enquiringwhether it could sentence
Mr. Breard to life in prison and at the same time recommend thathe not be released on parole.
Because such a sentencewas not provided for under Virginia law at the time, the judge did not
respondto the note. - 16-
At the conclusionof the 1993trial, thejury found Mr. Breard guilty of the murder, and he
was sentenced to death. Had he had the assistance of Paraguayan consular officers, that result
would have been different, at least with respect to the sentence.
4. Post-Conviction
Mr. Breard appealedhis convictionand sentenceto Virginia'sappellate courts. His appeals
were denied. He also petitionedthe state courts of Virginia for relief from hisdetentionby way
of a writ of habeas corpus. That petition was also denied.
In sum, Mr. Breardwas detained,tried, convicted, sentencedto death andhad exhausted al1
of the remedies available to him in the state courts of Virginia without ever receiving the
notification and consular assistance to which he was entitled under Article 36 of the Vienna
Convention.
In the springof 1996,withoutbenefit of informationfromthe authoritiesofVirginiaandthe
United States, Paraguay finally leamed that Mr. Breard was imprisoned in Virginia and awaiting
execution. Paraguayan andconsular officersimmediatelybeganrenderingassistancetoMr. Breard.
At the time Paraguayfirst contacted Mr. Breard, he wasentirelyunawareof hisrights under
the Vienna Convention. He was unaware of those rights precisely because the authorities of the
United Stateshad failedto complywith their obligationto notiQ himof his rightsunderthe Vienna
Convention.
In late August 1996,Mr. Breard took the final step available to him for challenging his
conviction and sentence: filing a petition for a writ of habeascorpus in a federalcourt of first
instance. For the first time, Mr. Breard raised violations of the Vienna Convention.
InNovember 1996,the federalcourt of first instancedeniedMr. Breard'spetitionfor habeas
corpus. The court held under the municipal law doctrine of procedural default,Mr. Breard could
not asserttheviolationsofthe ViennaConventionas a basisreliefinthe federalhabeasproceedings
because he had not done so in his prior legal proceedings. - 17-
The court held the doctrine to bar hisVienna Conventionclaims eventhough he hadfailed
to raise those claimsnot through any choiceon his part, but ratherbecause the Virginia authorities
had failed to notiS, him of his rights as required by the Convention.
The interrnediate federal appellate court affirmed the lower court's decision on
22 January 1998. This affirmance exhausted al1 of the municipal law remedies available to
Mr. Breard as a matter of right.
In light of the exhaustion ofuch remedies, by order dated 25 February 1998 the Virginia
court that had sentenced Mr. Breard set an execution date of 14April 1998.
Mr. Breard is scheduledto be moved on Friday 10 April 1998,fromthe maximumsecurity
prison where he is currently incarcerated to the facility in another town of Virginia where the
execution chamber is housed. Absent intervention,at 9 p.m. one week from today Virginiawill,
in the words of the authorizing statute, "cause the prisoner under sentence of death to be
electrocuted or injected with alethal substanceuntil he is dead" (Va. Stat. Ann. 553.1 234).
5. Breard's Petition to the SupremeCourt
Mr. Breard has now petitioned the United States Supreme Courtfor a writ of certiorariand
requested a stay of his execution.
Several aspects of the procedure in the Supreme Court are important to understand.
First, reviewin the SupremeCourt is not a matter of rightbut is a matterof discretionrarely
exercised. Less than five percent of al1petitions for certiorari are granted. The situation is no
different in cases involving the death penalty: prisoners facing execution routinely petition the
Court and request a stay, and the Court routinelydenies.
Second,incases involvingan imminentexecution,the Supreme Courttypicallydoesnotrule
on the petition and request for a stay of execution until shortly before the scheduled execution.
Often the decision is communicated telephonically to the petitioner a few hours before the
execution.
1 now turn to Mr. Donovan to set forth Paraguay'sApplication for provisional measures. - 18-
The VICE-PRESIDENT: Thank you Mr. Legum. Mr. Donovanplease.
Mr. DONOVAN:
IV. NEED FOR PROVISIONALMEASURES
Paraguay asksthis Courtto directthe UnitedStatesto ensurethatMr. Breard isnotexecuted
until the Court has had the opportunitytole on Paraguay'sclaims under the ViennaConvention
as presentedin itsApplicationinstitutingproceedings. InParaguay'sview,the impendingexecution
of Mr. Breard on the basis of acriminal proceeding that it is acknowledgedby the competent
authorities of the United States did not complywith the requirementsof the Vienna Convention
*
establishesthe need for provisional measures in this case with unusualclarity.
1will set forth Paraguay's Applicationin four steps. Fi1swill demonstrate the Court's
jurisdiction. Second, we will discuss the relationship of the provisional measures soughtto the
rights Paraguay seeksto vindicate in thister in orderto show thatthe measures soughtare the
minimum necessary to preserve the possibility ofan effective finaljudgment. Third, we will
describethe circumstances that establishthe urgencyofthe Application,and finally,1will set forth
the basis of Paraguay's claimthat it faces irreversibledamage.
First, the matter Paraguay brings to this Court is plainly a "dispute arising out of the
interpretation or application of the Convention". Mr. Legum explained, neither the United
w
States nor the competent authorities ofthe Commonwealthof Virginia have ever suggestedthat
Virginia officials complied with Article 36 of the Vienna Convention whenthey prosecuted
Mr. Breardfor capitalmurder. Paraguayhas soughtrelief for the violationfromthe United States
for the past 18 months, both through diplomatic channels and - although it was under no
obligationtodo so - through the municipal court system in the United States.
The United States,however, has taken no steps to remedy the violation. In particular, the
United Stateshas takenno stepsto halt the impendingexecutionofParaguay'snationalonthe basis
of a conviction and sentenceobtainedin violationof theConvention. As a result, the parties have - 19-
a dispute within Article 1of the Optional Protocol, and the Court is competentto hear Paraguay's
Application.
The Court'sauthority to go forward on this Application for provisional measures becomes
even clearer when one takes into account the principle,which this Court has stated on numerous
occasions,that on an application for provisional measuresthe Court need not finally satisS, itself
ofitsjurisdiction butmay - gïventheverynatureofprovisionalmeasures - proceed onthe basis
of a prima facie showing. Paraguay respectfullysubmits that the existence prima facie of
jurisdiction under Article 1 is çlear.
Second, the provisional measures Paraguayseeks are appropriate in light of its claims.
Specifically,the measures Paraguay seeks are both conservatory and consewative.
This Court has often stated that the objectiveof provisional measures must beto "preserve
the respective rights of the parties pending thedecision of the Court". Here, Paraguay claims, a
violationof Article 36 ofthe ViennaConvention. Paraguayclaimsthat it sufferedinjuryfromthat
violation in the form of a conviction rendered against, and sentence of death imposed upon, its
national.
To remedy the violation, Paraguay seeks restitution in kind and an order of non-repetition.
As to restitution, in the classic formulation of the Chorzow Court, the author of an
intemationallywrongfulacthas anobligation "asfaras possible, [to]wipeout al1theconsequences
of the illegal act and re-establishthe situation whichwould, in al1probability,have existed if that
act had not been committed". Article 43 of the ILC'sDra&Articles on State Responsibility is to
similareffect. In itsformulationthe injuredStateisentitledto "there-establishment ofthe situation
which existed before the wrongful act was committed".
In this case, the re-establishment of the prior situation will require an order against the
enforcementoftheconvictionand sentence. It mayalsorequire for exarnple,anorderdirectingthat
the plea offer whichwould have permittedMr. Breardto avoid the death sentencebe reconveyed. - 20 -
Obviously, no such orders could have any effect if Virginia has executed Mr. Breard in the
meantime.
Likewise, as to non-repetition, Paraguaywill seek anrder requiring the United States to
ensure compliance with the Vienna Convention should Virginia choose to retry Mr. Breard, as
Paraguay expects it would. That order, too, wouldbe useless if Mr. Breard has been executed.
Clearly, then, an order directingthe United Statesto ensure that Mr. Breardis not executed
duringthependency ofthis proceedingisnecessaryto preserveParaguay'srightsinthe controversy.
The Court has also stated that provisional measures should not "anticipate" the Court's
judgment on the merits. As an initialatter,1 should notethat the relief that Paraguay seeks on
w
the merits in this case is carefullyrestrained. Paraguay does not contend that Mr. Breard is not
subjectto re-trial orto futureprosecutionfortheacts with which hewas charged. The fundamental
contentionof Paraguay is that in any such re-trial Paraguay's rightsand Mr. Breard'srights under
the ViennaConventionmust berespected. Likewise,the provisionalmeasures thatParaguay seeks
are carefully limited andin nowayanticipateajudgment. Paraguaydoesnot ask,for example,that
Mr. Breard be afforded a new trialat this time, or that his convictionand sentencebe in any way
affectedexceptthatthedeath sentence- theexecution- beprovisionally suspended. Mr.Breard
will remain in custody, andif theUnited Statesprevails on the merits inthis case,Virginia will be
able to go forward with the execution. Thus,the United States can complain of no hann if the w
Court orders the narrowly tailored provisionalmeasures that Paraguay seeks.
Third, the Court has also said that provisional measuresshould issue only in situations of
urgency. There can be no question of urgency here. As Mr. Legum has explained, neither
Paraguay nor this Court can act on the assumptionthat the Supreme Court will grant a writ of
certiorari or stay of the executionin Mr. Breard'scase. As we have explained,Paraguay too has
soughtrelief in the municipalcourtsof the UnitedStates. At the moment Paraguaytoo, in its own
right and asserting only its own rights, also hasation for certiorari pendingbefore the United
States Supreme Court and accompanyingthat petition it has filed an applicationfor a stay of or - 21 -
injunctionagainst the execution. Butthe same situationthat Mr. Legum explainedwith respectto
Mr. Breard's own petitionobtaïnswith respectto Paraguay'spetition. Webelievethat the petition
is compelling,but we mustrecognize thatthe SupremeCourt grants very fewpetitions, and there
is no possibleway to predict inthe case of any individual petition whether or not it will doso.
The nature of the provisional measuresthat are necessary here, considered in light of the
constitutional structure of the United States,adds an additional element of urgency. The order of
execution is an order of a State court, that of the Commonwealthof Viriginia. While the United
States plainlyhas the abilityto comply with any order the Court may issue by obtaining a stay of
the Virginia court'sorder of execution, itwill need to intervene with State authorities in order to
do so, and itmay, if it is so advised, choose to cal1upon a federal court. In other words, unlike
some other situations, if the Ciourtindicates provisionalmeasures forbidding the execution, the
federal executive branch to which any order would first be communicated will need to act
affirmativelyin order to bring the United States in compliance with that indicationof provisional
measures. It will not be sufficientforthe United States,at least inthe form ofits federal executive
branch, simply to refrain from taking certain action. Forthat reason there is an additional need,
with the greatest respect, forthe Court to act quickly.
Finally, this Court hasstated that the authorityto grant provisional measures "presupposes
that irreparableprejudice shouldnotbe causedto rights which are the subjectof dispute injudicial
proceedings". In otherwords,the Court has requireda showingof irreparable injury or irreversible
damage in some senseas apredicateto an indicationof provisionalmeasures. In Paraguay'sview,
1need not dwell on this requirementhere. Needless to Say,death is irreparable,irreversibleand,
in a very fundamental sense, irremediable. Inconsidering requests from death-row prisonersfor
staysoftheirexecution,theUnitedStatesSupremeCourthas held,without resewation,thatincases
involving an execution, the equitable requirement of irreparable injury in seeking the equitable
interventionof a stay or injunction is a given. Now that a death penalty case has reached this
Court, it should be no different here. The crimeswith whichMr.Breard arechargeddeservethe mostunequivocalcondemnation.
On the present state of affairs, individualStatesof the United States havethe authorityto express
that condemnationin the form of the penalty ofdeath. But even if thedeath penaltymay still be
lawfully imposed as a matter of sanction, courts entrusted to uphold the rule of law- on the
internationallevelno lessthan onthe municipallevel - mustbe vigilantto ensurethe lawfulness,
too, of the proceedingsbywhichthat penaltyisimposed. To exercisethatvigilance here,the Court
must first indicateto the United States that it must ensure that Paraguay'snational is notexecuted
while this case is before the Court.
Dr. Gorostiaga will conclude Paraguay'ssubmissions.
The VICE-PRESIDENT: Thank you, Mr. Donovan. Dr. Gorostiaga, please.
Mr. GOROSTIAGA:
V. CONCLUSIONS
Mr. Vice-President, Mr. President, and distinguished Members of the Court.
My colleagueshave explainedthe importance of consular assistancein general. 1wish very
briefly to highlight the importanceof consularassistance in this case in particular.
The United States is oneof a relativelymall group of countriesthat still imposethe death
penalty. Paraguay'sConstitution,by contrast, expressly forbids the deathpenalty and guarantees
the right to life.
The severiw and irreversiblenature of the death penalty greatly increase the importance of
consularassistance inal1cases in which it is sought. There is an enormousqualitativedifference
between a term of imprisonment and death: a case in which the deathpenalty is soughtagainst a
foreign nationalimplicatesto the maximumextentpossiblethe foreign State'sinterestinprotecting
its nationals.
Such a case therefore brings intoplay in the most concrete and immediateway the sending
State's righttorovide consular assistance. -23 -
1wish to conclude by stating that Paraguay, of course, does not condone in any way the
violent crime with which Mr. Breardwas charged.
Further, Paraguay does not contest in any way the authority of the United States or its
constituent entities to enforce its criminal laws with respect to this or any other crime committed
within itsjurisdiction.
Paraguay does contend, however, that the competent authorities of the United States must
enforce its criminal laws by means that comport with the obligations undertaken by the United
States in the Vienna Convention.
That was not done in the case of Angel Breard.
Paraguay today requests that this Court indicate provisional measures to ensure that the
possibility will remain for Paraguay to exercise its rights under that Convention in Mr. Breard's
case.
Thank you.
The VICE-PRESIDENT: Thank you Dr. Gorostiaga.
TheCourt will now adjoum forten minutes and resume againto hearthe submissions ofthe
United States.
TheCourt adjournedjî-om 11.00 to 11.15 a.m.
TheVICE-PRESIDENT: Please be seated. The Court now resumes its sitting to hear the
submissionsof the United States of America.
Mr. ANDREWS: Thank you Mr. President, Members of the Court. Before 1 begin my
presentation 1 would like to express the pleasure of the United States delegation at seeing
Judge Kooijmans again sitting with the Court.
1.1.Mr. President, it is again an honour to appearbefore the Court, although 1regret that it
must be in a matter so hurried and involving facts so unhappy as those involved here. - 24 -
1.2.As the Court well knows, Paraguayfiledthis case fourdaysago. Becauseof Paraguay's
decision to file at such a latedate, the Courtdecidedto holda hearingtoday on Paraguay's request
for provisional measures. Out of Ourrespect for theCourt, we have of course come here urgently
toparticipate inhese proceedings. Thismorning, we willpresentourreasonswhythe Court should
not indicate provisional measures. Given the extraordinaryhaste of these proceedings, however,
Ourpresentations will be less fully developed than we would like. We regret the unfortunate
circumstances that have led to this expedited proceeding,which prejudices not just the United
States, but the ability of the Court tosiderthe issues before it fully and fairly.likewise
regretthe factthat Paraguay hashosento disregardthe two-monthperiod providedinthe Optional
w
Protocol to the Vienna Conventionforthe possibleresolutionof suchdisputesthrough conciliation
or arbitration.
1.3. Thefacts of thecriminal indictment underlyingthis case are straightfonvard; indeed,
we should al1be clear that Mr. Breard unquestionably committedthe offences for which he was
tried. On 17February 1992,Mr. Breard attemptedto rape andthenbrutallymurdered Ruth Dickie,
awoman inArlington,Virginia,a suburban jurisdiction acrossthePotomacRiverfiom Washington
D.C. He was then arrestedwhile attempting anotherrape. As we shall explain, genetic and other
physical evidence linkedMr.Breardto the murderand the attemptedrape. Indeed,ampleevidence
independent of his own testimony existedto prove that Mr. Breard committedthese crimes. Mr.
w
Breard was also implicated in a third sexual assault committed before he murdered MsDickie.
1.4. The Arlington police took Mr. Breard into custody and charged him with serious
offences. The Commonwealth of Virginia has stipulated in United States court proceedingsthat
the "competent authoritiesdid not inform Breardthat, as a nationalof Paraguay, he was entitled
to have Paraguay's consul notified of his arrest. Under Article 36 of the Vienna Conventionon
Consular Relations,the police were obliged to tellMr. Breard thatthe consul couldbe sonotified. -25 -
1.5.Mr. Breard had lived in the United States since 1986and speaks Englishwell, he was
appointedexperienced criminaldefencecounsel,andwas ableto maintaincloseandregularcontact
with friendsand family. Giventhe circumstancesand gravityof his crime,thejury recommended
that he be sentencedto death, and the judge did so. Thereafter,Mr. Breard'sattorneys brought a
number of further actions in Virginia state courts and in United States courts seeking reversa1of
his conviction and sentence. This process has continued for almost five years, involving actions
in differentcourts in the United States, includingthe UnitedStates SupremeCourt,where Breard's
request for certiorari- in other words, discretionary review by the Supreme Court - is still
pending today.
1.6. As this Court knows, the indicationof provisionalmeasures is a seriousmatter which
the Court is cautious in exercising. That is especially true in this case, where the Court is being
asked to take action that would severely intrude uponthe national criminaljurisdiction of a State
in a matter of violent crime. Under the Court'sjurisprudence, an applicant may only obtain the
indication of provisional measures of protection in narrowly-defined circumstances, which the
United States submits do not exist here.
1.7. The United States principal submission to the Court is that Paraguay has no legal
recognizable claim to the relief it seeks and, for that reason, there is no prima facie basis for
jurisdiction for the Court in this case, nor any prospect for Paraguay ultimatelyto prevail on the
merits. Consequently, and in accordance with its jurisprudence, this Court should not indicate
provisional measures of protectionas requested by Paraguay.
1.8. Paraguay has no legally recognizable claim because Paraguay has no right under the
Vienna Conventionto have Mr.Breard'sconvictionand sentence voided. Paraguayin effect asks
that this Court grant Mr. Breard a new trial- a right whichwould then presumablyaccrue to any
other person similarly situated in the United States or in any other Statewhich is a party to the
Vienna Convention. The United States will show in these proceedings that this is not the -26 -
consequenceof a lack of notification under the Vienna Convention. The Court should not accept
Paraguay'sinvitationtorewritetheConventionandto become a supremecourt of criminalappeals.
1.9.Before describingthe mannerin which theUnited Stateswill proceed in its presentation,
1feel obligedto make a few comments about the issue of the death penalty in the United States.
In amajorityof the statesof the United States(thirty-eight),includingVirginia,votershave chosen
through theirfreely electedoficials to retain the deathpenalty for exceptionallygrievousoffences.
Likewise, the United States itself authorizes the death penalty for exceptionally grievous federal
offences. Inpractice,it is imposed,almost withoutexception,only foraggravatedmurder, as well
as the case here. In al1cases, the death penalty maybe carried out only under substantive laws in
w
effect at the time the crime was committed. Al1convictions and sentences involving the death
penalty are subject to the extensive due process and equal protection requirements of the United
States Constitution. Theyare alsosubject to exhaustiveappeals at the state and federal levels,as
has been the case with Mr. Breard.
1.10.Whencarriedout inaccordancewiththesesafeguards,the deathpenaltydoesnotviolate
international law. Capital punishmentis not prohibitedby customaryinternational law orby any
treaty to whichthe United States is arty. Werecognize that somecountries have abolished the
death penalty under their domestic laws and that some have accepted treaty obligations to that
effect. We respect their decisions. However, we also believe that in democratic societies, the
w
criminaljustice system, includingthe punishmentsprescribed for the most serious crimes, should
reflect the will of the people freely expressed and appropriately implemented by their elected
representatives. Within the United States, legislative majorities nationally and in most of the
constituentstateshavechosento retainthe optionofcapital punishmentforthe most seriouscrimes.
1.11.Many other countries likewise maintain capital punishment. On the sarne day that
Paraguayfiledthis case,3 April,theCommissiononHuman Rights inGeneva adopteda resolution
that encouraged Statesthat have the death penalty to establish a moratorium on executions. This
resolution passed,butby a sharplydividedvote of26 in favour and13 against,with 12abstaining. - 27 -
This action reflects the diversity ofviews held in the international community concerning capital
punishment.
1.12. Capital punishment is not the issue in the dispute between the United States and
Paraguay. The actual issues are quite different. They are verynarrow. Theyrelate to the Vienna
Convention on Consular Relations,to which both the United States and Paraguay are parties.
1.13. As is customary, Mr. President, the United States will not read the full citations that
support Ourarguments, but they are included in the texts provided to the Court and to opposing
counsel. Further, 1 wish to note that the United States reserves the right to make additional
arguments regarding issuesof jurisdiction or the merits of this case that are not made today for
purposes of this proceeding. Our presentationwillproceed as follows. Ms Catherine Brown, the
Department of State's AssistantLegal Adviser for Consular Affairs, will discussthe nature of the
consular function and the practice of Stateswith regard to consular notification and theemedies.
whennotification isnot provided. Shewill alsodescribein somedetail theunderlying facts ofMr.
Breard'scase and the efforts of the United Statesonce it became aware of the case.
1.14. Ms Brownwill be followedbyMr. JohnCrook,theStateDepartment'sAssistantLegal
Adviser for UnitedNations Affairs. Mr. Crook willdiscussthe legal factorsthat shouldguidethe
Court in detennining whether it shouldindicate provisional measuresand will apply those factors
to this case to show that provisional measures arenot warranted. In doing so, he will discussthe
text of the Vienna Convention, it negotiatinghistory, and relevant subsequent practice.
1.15. Mr. Matheson, the State Department'sPrincipal DeputyLegal Adviser and Co-Agent
in this case, will address additional,prudential reasons for the Court not to issue provisional
measures in this case, by noting the problemsthat would be created were the Courtto assume the
role asked by Paraguay.
1.16. After Mr. Matheson's presentation, 1 will return to the podium to provide a brief
closing. Thank you, Mr. President. 1ask you nowto inviteMs Brown to the podium. -28 -
The VICE-PRESIDENT: Thank you Mr. Andrews. 1 give the floor now to
Ms Catherine Brown.
Ms BROWN: Mr. President, Membersof the Court,
2.1. It is a privilege and honor to be appearing before this Court for the first time.
2.2. Mytask is to explainto the Court the factualbackgroundof this dispute. 1will review
howthe United States has responded tothe concems expressed by the Government of Paraguay,
includingthe resultsof our investigation intothe facts of Mr. Breard's case. First, however,ll
address the nature of the consular function and the practice of States with regard to consular
notification, in so far asose facts are relevant to the issues of this case.
1. The ConsularFunction
2.3. Theprincipal functionof consularofficers isto provide services andassistanceto their
country's nationals abroad. The Vienna Convention on Consular Relations, to which both the
United States and Paraguay are parties, enurneratesa wide range ofgeneral consularfunctions in
Article5. Article 36 addresses the specific issue of consular officers communicatingwith their
nationals abroad.
2.4. Article36, paragraph 1(a)p ,rovidesthatconsularofficialsshallbefreetocommunicate
withtheir nationalsandto haveaccessto them. Thiscasedoesnot involvea deliberateinterference
withParaguay's rightto communicatewith itsnational, Ange1Breard. Moreover,sinceParaguayan
consular officialsbecarneawareof Mr. Breard's detention,they havebeenableto communicateand
visitwith him.
2.5. Article36, paragraph 1 fi),providesthat a detained foreign national shailbe permitted
without delay to communicatewith the relevant consular post and that competent authorities will
advisethe consularpost oftheforeignnational'sdetentionwithoutdelay ifthe detaineeso requests.
There is no seriousquestion inthis casethatMr. Breardcouldat anytime have communicatedwith -29 -
a Paraguayan consularofficial, eitherdirectly orthrough his familyor his attorneys, had he known
and chosen to do so.
2.6. Article 36, paragraph 1 (b), concludeswith the "consularnotification" obligation that
is at issue in this case: it provides that "the said authorities shall inform the person concemed
withoutdelay of his rightsunder this paragraph". Virginia authoritiesapparentlydid not so advise
Mr. Breard, at the time of his arrest, or at any time prior to his conviction and sentence,that he
could communicate with a consular official. But that does not mean that he was impeded or
dissuadedfrom obtainingconsularassistance. He,or his family,or his attorneys,might atanytime
have enlisted the assistance of a consul, as is frequently the case. The option of calling one's
embassyor consulfor help is widely known, andmany govemmentsadvisetheir own nationalsto
cal1their embassy or consul in an emergencyabroad.
2.7. Article 36, paragraph 1 (c), providesthat consular officials may visit their nationals in
detention, converseand correspondwith them, and arrange for their legal representation. Again,
therewas no deliberateeffortto interferewiththis right, andsincebecomingaware of Mr. Breard's
detention Paraguayanconsular officials have been able to visit and communicate with him. With
respect to legal representation, arrangements were made by the State of Virginia for two clearly
competent lawyersto represent Mr. Breard. Thus a consul proved unnecessary to perform this
function.
2.8. Finally,Article 36, paragraph 1(c),concludesthat a consular officer shall refrainfrom
taking action on behalf of a national who is in prison if he expressly opposes such action. This
provision is of particularnterest here because Mr. Breard did not accept - indeed he adarnantly
resisted and even rejected - the advice not only of his attorneys, but also of his mother a
Paraguayan national.
2.9. Severaladditionalpointsarenoteworthy. First,neitherArticle 5norArticle 36imposes
any obligations on consular officers themselves. A consular officer may or may not choose to
undertake any particular functïon on behalf of his countrymen. Consequently, the practice of -30 -
States - and even of individual consuls -in assisting their nationals varies widely. Some
countries are very active, while others are passive or evenrankly uninterestedor unable to
provide any significantconsular assistance. A country rnayhavejust one or two consularofficials
in a capital city, ande at a more remote location. A country'sconsular officials rnay make
frequentprisonvisits or visit only selectively,if at al]. Each countrydecides for itselfwhat itwill
do. This intum createsexpectations among its nationalsas to whetherseeking consularassistance
would be worthwhile.
2.10. Second,nothing in these Articles elevates the rights of foreign nationals abovethose
of citizens of the hostcountry. A foreignnational is expectedto obeythe host country'slaws, and
-
is subject to its criminaljustice system. Consularofficersassisttheirnationalswithinthis context.
Consistentwiththis, Article(9ofthe Vienna Convention limitsthe rights of consularofficersto
represent or to arrangerepresentation of their nationals before the of the receiving State.
Theyrnaydo soonly "subjectto the practicesand procedures obtainingin the receivingState". The
United Statesdoesnot permit foreignconsularofficialsto act as attomeys inthe United States,nor
rnay its own consularficers abroad act as attorneys for Americancitizens. We believethat this
is the general practice of States.
2.11. Third,the Vienna Conventiondoes not make consularassistancean essentialelement
of the host country'siminaljustice system. This is inevitable,giventhat consularofficers havw
no obligations to act in any particular way vis-à-vis a host country'scriminaljustice system. A
consul rnaydo nothingat all, leavingthejustice systemto run itscourse. Or, the consulrnayvisit
the detainee;rnay ensure that the detainee's family is aware of the detention; rnay assist the
detainee in securing counsel, if necessary; and rnay follow developmentsso that any questions
about the fairnessof the proceedings can, if appropriate, be discussedwith host country officials.
But the consular officer is not responsible for the defence becausehe cannot act as an attorney. - 31 -
II. State Practice With Respect to Consular Notification
2.12. Two additional aspects of state practice are relevant: how faithfully do govemments
providenotificationand what remedies, if any,areprovided by govemmentsfor failuresto notiQ?
Because it is importantthat the United Statesrespond appropriatelyto allegationsof violationsof
consular notification,the Departmentof State recentlymade inquiriesto al1of our Embassiesand,
throughthem, directlyto governmentson thesematters. Whileourinformationremainsincomplete,
we believe that it fairly reflects the range of state practice.
2.13.Practicewith respecttonotification: CompliancewithrespecttotheobligationtonotiQ
the detainee of the right to see a consul in fact varies widely. At one end ofthe spectrum, some
countries seem to comply unfailingly. At the otherend, a smallnumber seem notto complyat all.
Rates of compliance seempartly to be a functionof such factorsas whether a country is large or
small, whether it has a unitary or federal organization, the sophistication of its internal
communicationsystems,andthe way in which thecountry haschosento implementthe obligation.
Countrieshave chosen to implementthe obligationin differentways, includingby providing only
oral guidance, by issuing internal directives, and by enacting implementing legislation. Some
apparently provide no guidance at all.
2.14. If a detainee requests consular notification or communication,actual notification to a
consul may take some time. It may be provided by telephone, but sometimes a letter or a
diplomaticnote is sent. As a result there may be a significantdelaybefore notification is received
and, consequently, critical events in a criminal proceeding may have already occurred before a
consul is aware of the detention. And, as noted previously, the consul may then respond in a
variety of ways. For these reasons, and because of the wide variation in compliance with the
consular notificationrequirement, it is quite likely that few, if any, Stateswould have agreed to
Article 36 if they had understoodthat a failureto comply withconsularnotificationwould require
undoing the results of their criminaljustice systems. 2.15. Practicewithrespectto remedies: Letme turnnow to whatOurinquiriesrevealed about
state practice with respect to remedies. Typicallywhen a consular officer learns of a failure of
notification,a diplomaticcommunicationis sentprotestingthe failure. While suchcorrespondence
sometimes goes unanswered, moreoften it is investigated either by the foreign ministry or the
involved law enforcement officials. If it is learned that notification in fact was not given, it is
common practice forthe host governmentto apologize andto undertaketo ensure improved future
compliance. We are not aware of any practice of attempting to ascertain whetherthe failure of
notification prejudiced the foreign national in criminal proceedings. This lack of practice is
consistent with the fact and common international understanding that consular assistance is not
-
essential to the criminal proceeding against a foreign national.
2.16. Notwithstandingthis practice, Paraguay asksthat thejudicial processof the State
of Virginia- Mr. Breard's trial, his sentence, and al1of the subsequent appeals, which 1 will
review momentarily - be set aside and that he be restored to the positionhe was in at the time of
his arrest because of the failure of notification. Roughly 165 States are parties to the Vienna
Convention. Paraguay has not identifiedone that provides such a status quo ante remedy of
vacating a criminalconvictionforafailureof consularnotification. Neitherhas Paraguay identified
anycountry that hasan establishedjudicial remedywherebya foreigngovernmentnseek to undo
a conviction in its domestic courts based on a failure of notification.
2.17. In the United States today, foreign nationals and the Government of Paraguay are
attempting to have Ourcourts recognize such a remedyas a matter of United Statesdomestic law.
But ifOurcourts do so, the United States will become,as far as we areaware, the first country in
the world to permituch a result. A number of foreignministries have advised us that this result
would certainly or most likeiy not be possible in their countries.
2.18. It is notfficult to imagine why such remedies do not exist. As noted, consular
assistance, unlike legal assistance, is not regarded as a predicate to a criminal proceeding.
Moreover, if a failure to advise a detainee of the right of consular notification automatically - 33 -
required undoing a criminal procedure, the result would be absurd. In particular, it would be
inconsistentwith thewidevariationthatexistsinthelevelof consular servicesprovidedby different
countries. But it wouldbe equallyproblematicto havea rule that a failureof consular notification
requireda retum to the statusquoanteonly if notificationwould have ledto a different outcorne.
It wouldbe unworkable fora court to attemptto determinereliably what a consular officer would
have done and whether it would have made a difference. Doing so would require access to
normallyinviolable consular archivesand testimony from consular officiaisnotwithstanding their
usualprivileges and immunities. In this case, forexample,one might wishto examine Paraguay's
consular instructionsand practicesas ofthetime whenMr. Breard was arrestedand inquire intothe
resources then availableto Paraguay's consularofficers. Surely govemments did not intend that
such questions become a matter of inquiry in the courts.
III. The United States Response To The Failure of Notification
2.19. Against this background, 1 would now like to advise the courtof the steps taken by
the United States relating to this case in an effort to be responsive to Paraguay's concems.
2.20. The United Statesreceived official notice of Mr. Breard's case in April 1996through
a diplomatic note from Paraguay'sEmbassy in Washington. Significantly,the note did not allege
a breach of the Article 36 consular notification obligation. It did not request consultations to
discuss the case. It did not ask for any United States govemment intervention other than to
facilitate efforts to obtain information fromVirginia, which the Departmentof State did. The
Department later learned, from Mr.Breard's attorneys, that those attorneys were attempting to
challengeMr. Breard'sconvictionbasedonan apparentfailureof consularnotificationand litigation
broughtby Mr. Breard.
2.2 1.In September1996,Paraguayfiledsuit againstVirginia ina federaltrial court. The suit
sought to restore the status quoante for Mr. Breard on the theory that only such action could
vindicateParaguay's governmentalrights in consular notification. -34 -
TheDepartmentof Statediscussedthe casewith representativesofParaguayinOctober 1996
and laterreceiveda requestfromthe Paraguayan Ambassadorfor assistanceinobtaininga newtrial
for Mr. Bread. That request failed to provide any evidencethat consular law or practice would
require sucha result. Nevertheless,United Statesofficiaismet with counsel for Paraguay aboutthe
matter and gave the issues raised by the suit careful consideration. Ultimately,the United States
concluded that Paraguay's remedy for the consular notification failure lay in diplornatic
communications with the Department of State. The United States so advised both the court in
w.hichParaguay's casewas pendingandParaguay'sAmbassador. TheUnited Statesdidnot object
to Mr. Breard's own efforts to raise the consular notification issues in the courts, but neitherdid
it support them.
2.22. On 3 June 1997,the Departmentreceived anotherletter from the Ambassador. 1note
that this letter is not referenced in Paraguay's Applicationto this Court. In it the Ambassador
advised that Paraguay thought that the dispute should be resolved in the domestic courts of the
United States, and not by this Court, but that Paraguay nevertheless would agree withthe United
States to come to this Court. This proposa1 was conditioned: the domestic United States
proceedings should be stayed and the United States shouldwaive anyjurisdictionai objections it
might have to thejurisdiction of this Court and the United States shouldagree to require Virginia
to accept this Court's decision. LikeParaguay's previouscorrespondence,this letter again failed
to offer any serious explanation of why the remedy Paraguaywas seekingwas appropriate.
2.23. The Department of State neverthelessthen decidedto undertake an investigation into
the case. In Ourinvestigation,we receivedthe full CO-operation of Virginia and we reviewedal1
facts relevantto the consularnotification issue. This includedthe criticalportionsofthe transcript,
includingMr. Breard's testimonyandanaffidavitfrom hisdefence lawyersconcerningtheirefforts
on his behalf.
2.24. Throughthis process, we learned the following relevant facts: - 35 -
Mr. Breard unquestionablycommittedthe offences for whichhe was tried. He was arrested
(1)
while attempting a rape. Genetic and other physical evidence linked him to the earlier
murder andattemptedrape ofRuth Dickie. Ample evidenceexistedto provethat Mr. Breard
committed these crimes, entirely independentlyof his own testimony. Indeed, nothing in
Paraguay'ssubmissionsuggeststhat Mr. Brearddid notcommitthe crimes forwhich he was
sentenced. Paraguay instead suggests that a consular officer might have persuaded
Mr. Breard to make different tactical decisions;
(2) Mr. Breard had almost immediate and thereafter continuing contact with his family. He
testified that one of the first phone calls he made at the time of his arrest was to his uncle.
His mother and a cousin were involved in his defence, and his mother testified at his trial.
Contacting farnily members is normally one of the first and most important things that a
consular officerdoeswhen a national is detained,but hereconsularassistanceto accomplish
this proved unnecessary;
(3) Mr. Breard first came to the United States 1986 and thus had been resident in the United
States for about six years at the time of his arrest. He had been married briefly to an
American. This made it difficult to accept Paraguay's contentionthat Mr. Breard did not
understand American culture;
(4) Mr. Breardhad a good commandof English. His lawyershad nodifficulty communicating
with him in English. He testified at his trial in English and the transcript of his testimony
attests to his command ofthe language. Mr. Breard told thejudge that he had no problems
with English and was comfortable speakingit. Moreover,the statewould have provided an
interpreter had one been needed. Thus, Paraguay's implicationthat Mr. Breard was tried
unfairly in a languagehe did not understandis demonstrablyfalse. While a consular officer
might help interpret for a detained foreign national, such assistance was not needed by
Mr. Breard; - 36 -
(5) Mr. Breard was representedby two criminal defence lawyers experienced in death penalty
litigation. They spentat least400 hours -theequivalentof 50days - on hiscase. United
Statescourts subsequentlyconcludedthat their legalrepresentation metthe requirementsof
the UnitedStatesConstitutionfortheeffective assistanceof counsel.Theseattorneysworked
closelywith Mr. Breard, his mother,a female cousin, andhis religious counsellorfromjail,
who wasof Bolivianorigin, to preparehis defence. Theycommunicated with Mr.Breard's
personalfriends to findwitnesseswho could testi* on his behalf. They communicatedwith
perçonsin Paraguayto find evidencethat would assistin his defence. They arrangedfor the
courttoappointthreeexpertstoexamineMr. Breard'smentalcompetence,andthey obtained
w
his medicalrecords from Paraguayand from Argentina,so as to explorefullythepossibility
of an insanitydefenceand to developmitigation evidence. Paraguay'sassertionthat it could
havepaidforwitnessesfromParaguayappears irrelevant, becausebothhismotherand cousin
came from Paraguayto assist andthere is no indicationthat there were other witnesseswho
were not used because of financial constraints;
(6) Mr. Breard decided to plead "not guilty" and to testifi in both the penalty and sentencing
phasesofhis trial contrarytotheadviceof his legal counseland his moth-r astrategythat
was clearly unwise. This is the principalactical decision Paraguay asserts it could have
changed,but it is clear that Mr. Breard was advised against it by his own lawyersand his
w
mother,yet rejected their advice. He was fully apprised of the risks of his strategy in the
contextof the American legal system. Access to a consular officer, who wouldhave been
lessfarniliar with that system than his own lawyers, would not have made Mr.Breard's
tactical decisions more informed;
(7) there isno credible evidencethat Mr. Breard's decisionto plead "not guilty" andtestifi was
foundedon a culturalmisunderstanding. He was bom and livedhis early yearsinArgentina,
he went to Paraguay for his secondaryeducation and then he came to the United States to
study English. As noted, he had been in the United States for six years and married to an - 37 -
American briefly. Significantly,as noted, his mother was also Paraguayanand yet sheas a
Paraguayan understoodthe error of hisjudgment well enoughto advise him not to do what
he did. And again, finally, his lawyers unequivocally explained to him that his strategy
would notwork. He signeda statement confirmingthat hewasrejectingtheiradviceandwas
not afraid of the outcome even if it resulted in a sentence of death;
(8) although Mr. Breard's legal counsel apparentlythought that Breard had the opportunityto
plead guiltyinexchangefor a lifesentence,at best only verygeneral preliminary discussions
were held on this matter and they were never seriously pursued. Virginia officiais have
advised us that no actualffer of a plea agreementwas ever madeandthat nonewould have
been made, because of the strength of the government's case and the aggravated
circumstances of the crime. Virginia would notaff~rmativelyhave agreedto a life sentence
because underVirginialawa lifesentencewouldhave permittedMr. Breard'sfuturerelease.
Thus Paraguay'sassumptionthat Mr. Breard could have avoidedthe death penaltythrough
a plea bargain does not withstand scrutiny;
(9) objective evidence indicates that the jury and the judge could easily have decided on the
death penalty evenif Mr. Breard hadnot testified. There was evidencethat the murderwas
"aggravated" within the meaning of Virginia law, both by the "vileness" of the particular
circumstances surrounding it and by the continuing danger that Mr. Breard posed to the
community. This evidencesupportedimpositionof the deathpenalty underVirginia lawand
the judge, who had to approve the jury's recommendation, would have known that a life
sentence meant the possibility offuture release;
(10) finally, Mr. Breard had the full protection of the criminaljustice system. In addition to
competent court appointed counsel,he had fulljudicial review. His convictionand sentence
were reviewedand sustainedby the Virginiatrial court andthe Virginia SupremeCourt, and
subsequentlyby a federaldistrictcourt anda federal appealscourt. Theconsularnotification - 38 -
issue was being raised only afier these procedures had been completed, in yet two more
entirelyseparate legal proceedings.
2.25. InJuly 1997,the Department reportedthe results of its investigationin a letter to the
Ambassador. That also is not referredto in Paraguay'sApplication tothis Court.causeit found
no evidence of consular notification or access, the Department expresseddeep regret thatuch
notification apparently was not provided to Mr. Breard. The Department advised, however, that
there was no basis for concluding that consular assistancewould have altered the outcome. It
further stated that it saw no appropriate rolefor this Court.
2.26. Significantly,the Government ofParaguay hasnever respondedto that letter, eitherto
*
contest its factualassumptionsor to addressthe Department's conclusionthat consular notification
would not have madea difference. Even so, the United States has continued to have periodic
communications and discussions about the case with Paraguay. These discussions included
assurancesgivenasrecentlyasFebruaryofthisyear by seniorParaguayangovemmentofficialsthat
they recognizedthat this case was unprecedentedand unlikelyto succeed. On 30 March, however,
Paraguay unexpectedlyadvisedthe UnitedStatesthat itwouldfile this suitunlessthe United States
engaged inconsultationsand stayedMr. Breard'sexecution. Still preparedto address indiplomatic
channels any issues relating to consular notification, the United Statesagreed to engage in
consultations. The United States did so eventhough it wasunable to staythe executi-n which w
is in the hands of the United States Supreme Court and the Governor of Virginia - and even
though it continues to believe that this Court is not an appropriate forum to address Paraguay's
concems.
2.27. In addition tohese specificmeasures relating to Mr. Breard'scase, the United States
has also intensified its long-standing efforts to ensure that al1 federal, state, and local law
enforcement officials in the United Statesare aware of andcomply with the consular notification
and access requirementsof Article 36. Guidanceon theserequirementshas been issued regularly
by the Department of State for many years. Recently, however,the Department has issueda new - 39-
and comprehensive guidance on this subject, along with a pocket-sized reference card for law
enforcement officers to cars, on the Street. Thesematerials have been personallyprovided by the
Secretaryof Stateto the United StatesAttorney-Generalandto the Govemor of every stateof the
United States including, of course, Virginia.They have alsobeen providedby the Department's
Legal Adviser, Mr. Andrews, to every state Attorney-General, and they are being disseminated
throughout the United States. In addition, the Departments of State and Justice have begun
conductingbriefingsontheseissuesfor stateandfederalprosecutors,andlawenforcementofficiais,
focusing particularly on areas with high concentrationsof foreign nationals. Through these and
other efforts,the United Statesisboth acting to correctthe circumstances thated to the failure of
consular notification in Mr. Breard's caseandacting in a manner consistent with state practice.
Nothing more is required.
2.28. Mr. President, that concludes my factual presentationof the consular issues raisedby
this case. 1thank the Court for its attention and invite it now to call upon Mr. Crook to speak.
The VICE-PRESIDENT: Thank you, Mrs. Brown. 1call now on Mr. John Crook.
Mr. CROOK:
3.1. Mr. President, Members of the Court, it isagain an honour and a pleasure for me to
appear beforeyou. My presentationwill considerseveral important legalfactorsthat should guide
the Court in determining whetherto indicate provisional measures in this case.1 will show why,
for a number of reasons, the Court should not indicate the measures requestedby Paraguay.
1. The Significanceof ProvisionalMeasures
3.2.1 mustbegin by underscoringthe gravityand importanceof the decisionnow before the
Court. As theCourt well understands,the indicationof provisionalmeasuresis a matter of serious
consequence. The decisions of this Court clearly show the need for caution before taking such
action. This reflects, first of all, the impact on the authorityand the responsibility of sovereign
Statesthat suchmeasures may have. It also reflects the factthat such measuresmay be indicated - 40-
only after hurried and incomplete proceedings, andthat is particularlytme herewhere the Court is
sitting to hear a case that was filed less than 96 hours ago.
3.3. It is forh reasons that the Court and commentators have stressedthe exceptional
nature of the Court's provisional measures power.er the Court, for example,to its Order in
the case concemingAegeanSea ContinentalShelf(Greecev. Turkey), Interim Protection,Order
of Il September1976, (I.C.J.Reports 1976,paras.32 and Il) and, as Mr. Andrews indicated,the
citations inl1these matters are contained in the transcript we have handed to the Registry.
Thoughtfulopinions by individual Judgeshaveexaminedthe point in greater detail. 1refer you to
Judge Shahabuddeen'sopinionin the caseconcemingassage Through theGreatBeIt(Finlandv.
-
Denmark),ProvisionalMeasures,Orderof29July,1991,(1C.J.Reports1991,p. 29); JudgeLachs
in the Aegean Sea Continental Shelj Interim Protection, Order of II September 1976,
(I.C.J.Reports 1976, p. 20); the dissentingopinions of Judges Winiarski and Badwi Pasha in the
case conceming the Anglo-Iranian Oil Co., Interim Protection, Order of 5 July, 1951,
(I.C.JReports 1951, p. 97)where they observedthat "[mleasuresof this kind in intemationallaw
are exceptional in character to an even greater extent than they are in municipal law; they may
easily be considered a scarcelytolerable interference in the affairs of a sovereign State". Judge
Lachs,1think, well summedup the consequences in his separate opinion in theAegeanSeacase:
"theCourtmust take a restrictiveview ofitspowersindealingwith arequestforinterim measures".
W
3.4.ThebasicfactorsguidingtheCourt'sdecisionwhetherornotto use itsexceptionalpower
to indicateprovisionalmeasuresare laidinthe Statuteof the Court. Article 41envisionsthat
the Courtwillarryout two separate, althoughinter-related,exarninations. In the interestsoftime,
1shall not readArticle 41 1uwould refer theCourt to it, in particular Article 41(1).
3.5.As the Court willsee,that textenvisionstwo separatelinesof enquiry. First,theCourt's
decisionwhether to indicateprovisional measures is to be guided by anassessment of the overall
contextor circumstancesofthe case beforeit. Second,anymeasuresto be indicatedare of a nature - 41 -
"which ought to be taken to preserve the respective rights of either party". 1shall considereach
of these aspects in turn.
II. Provisional measures are not warranted in these circumstances
3.6.1 shall begin by showing how provisional measures are not warranted in these
circumstances. Now Article 41 shows that the Court can and should consider the totality of
circumstances involved in a case in deciding whether the indication of provisional measures is
appropriate. Other members of the United States team are treating some particularly relevant
circumstances. The Agent of the United States, Mr. Andrews,briefly addressed issues relatingto
the timing of this case. He noted the prejudice, both to the United States and to the judicial
process, that follows from the Applicant's decision to file its case at the time it chose to do so.
Ms Brown described the facts underlying Paraguay's claim, showing how it departs from the
realities of internationalconsular practice. She also showedhow the failureto inform Mr. Breard
of his right to consular access had nobearing on his trial, conviction and sentence. In Ournext
presentation, Mr. Matheson will analyse yet other relevant circumstances, particularly the
implicationsof this case for other Statesand for the Court.
3.7.Myown discussionwill be focusedon two interrelatedaspectsofParaguay'slegalclaim.
First, 1will show how the Court does not have jurisdiction to provide the remedy that Paraguay
seeks in its Application. Then 1 will show how, in assessing whether to indicate provisional
measures which may substantially prejudice the party against which they are directed, the Court
must weighthe nature of the legal claims before it. The Courtshould not exercise its exceptional
power to indicate provisional measures that prejudice the target State, where the moving Party's
claims are legally unfounded or are unlikelyto prevail.
3.8.Now as 1shall show, particularly given the drastic consequences of Paraguay's basic
legal claim- that the lack of consular notification invalidates each and every subsequent
conviction of any alien in any State party tothe Vienna Conventionon ConsularRelations- thatclaim should not prevail. Neither the Convention'slanguage, norits history,nor State practice
supports it.
3.9. Becauseof the fundamentalflaws that undermineParaguay'sclaimfor relief,the Court
has no jurisdictional basis for the measures now requested. admittedly, the showing of
jurisdiction at the stageof preliminary measuresis less substantial required at later stages
ofthe case. As the Courtrecently summarisedinits Applicationofthe GenocideConventioner
"[Oln a request for provisional measures, the Court need not, before deciding
whether or not to indicate them, finally satisS, itself that it has jurisdiction on the
merits of the case, yet it ought not to indicate such measures unlessthe provisions
invoked by the Applicant ... appear, prima facie, to afford a basis on which
jurisdiction of the Court might be established." (Applicationof theConventiononthe
Preventionand Punishmentof the Crime of Genocide,ProvisionalMeasures,Order
of 8 April 1993, I.C.J. Reports 1993, p. 11,para. 14.)
Although the burdenof showingjurisdiction islowernowthan it will be at laterstages ofthis case,
the Applicantstill has a burden to meet. Paraguay has not met that burden.
3.10. Article of the Optional Disputes SettlementProtocol to the Vienna Conventionon
Consular Relations givesthe Court jurisdiction over disputes arising outof the "interpretationor
application" ofthe Convention. However, there is no dispute here about either the interpretation
or the applicationof the Convention. The Parties do not disagree on whatitto "inform" a
-
foreign national of his rights under Article 36, paragraph 1 (b), of the Convention. Nor do they
dispute that Mr. Breardwas not so informed.
3.11.Instead, Paraguay'sclaim in this case, in essence, is thatienna Convention
the Courtcan void Mr. Breard's criminal conviction and sentence,and requirethat he be givena
newtrial. As 1will show,the Vienna Conventiondoes not providefor suchan extraordinaryform
of relief. Paraguaymayobject to the appropriatenessof a criminalconvictionand sentenceunder
United States law and practice, but this is not a dispute aboutthe interpretationor applicationof
the Vienna Convention. -43 -
3.12. Paraguaytriesto meet this difficultyby invokingthe doctrine of restitutioinintegrum
(Paraguay's Application,p. 11,para. 25). Paraguay cannot, however,create a right that does not
otherwise exist under the Vienna Convention onConsular Relations- the Court's sole basis for
jurisdiction in this case- simply by invoking a general principle of the law on reparation.
Paraguay has failed to make a prima facie showingthat the Court has jurisdiction to grant the
exceptional relief it seeks here. Under the circumstances, under the Court's well-settled
jurisprudence, there is nojurisdictional basis for the Court to indicate provisional measures.
3.13. In this respect, this situation similar to that faced by the Court in the provisional
measuresphaseofthe Lockerbiecase (caseconcerningQuestionsofInterpretationandApplication
of the 1971 Montreal Convention arising fr'om the Aerial Incident ut Lockerbie, Order,
14 April 1992, Request for the Indication of Provisional Measures, para. 43) There, the Court
found, as a prima facie matter, that there was no legal basis for the Libyan claim under the
Montreal Conventionbecause of the adoption of a resolution of the Security Council. The Court
thereforerejected Libya's request for provisionalmeasuresbecause "the rights claimed .. .under
the Montreal Conventioncannotnow beregardedas appropriateforprotection by the indicationof
provisionalmeasures". In a similarway here,there is no legalbasisfor the rights that are claimed
by Paraguay. Those claims too are not an appropriate basis for the indication of provisional
measures.
The Meriîs of Paraguay's Claim
3.14. Obviously,the Court cannotconsiderthe merits at this stage in a casethat is 96 hours'
old. Nevertheless, in addition to assessing whether it has jurisdictionto proceed, the Court must
weighthe totality of circumstancesbearing onParaguay's request for preliminary measures.In so
doing,the Court must consider the doubtful nature of the core legal proposition that Paraguayis
advancing - thatthe Conventionrequiresthe invalidationof everyconvictionandsentenceof any
personwho has not received consular notification required by the Convention. -44 -
3.15.The difficulties with Paraguay'slegalpositionmustbeconfrontedat this stage,and this
ought to be an important element in assessingthe appropriatenessof provisional measures. As
Dumbauld wrote at the time of the Permanent Court, "if it is apparent that the applicant cannot
.
succeed inhis mainaction, preliminaryrelief willof coursebedenied"(Edward Dumbauld,Interim
Measuresof Protection in InternationalConîroversies 165(1932).
A. Plain Meaning of the Text
3.16. Whatarethe legaldifficulties? Tobegin with,Paraguay's claim conflictswiththeplain
meaning of the text. Absolutely nothinginthe language of Article 36, paragraphhe Vienna
-
Convention on Consular Relations (or in any other Article of the Convention)offers support for
Paraguay's claim that failure of consular notification requires invalidation of any subsequent
conviction and sentence of an alien.
3.17. Paraguay'slaims follow from Article 36, paragraph 1,of the Vienna Convention,to
which boththe United Statesand Paraguayareparties. Article36 establishesthe basic régime for
consular assistanceto nationals who may beetailed in the receiving State.
Article 36, paragraph 1, provides:
"1. With a view to facilitating the exercise of consular functions relatingto
nationals of the sending State:
(a) consular officers shall be freeto communicatewith nationals of the
sending State andto have access to them. Nationals of the sending
State shall have the same freedom with respect to communication
with and accessto consularofficers of the sending State;
(b) if he so requests, the competent authorities of the receiving State
shall, without delay,informthe consularpostofthe sending State if,
within its consular district, a national of that Stateis arrested or
committedto prison or to custodypendingtrial or is detained in any
other manner. Any communicationaddressedto the consular post
by the person arrested.. .shall also be forwarded to the said
authorities without delay. The said authorities shall inform the
person concerned without delay of his rights under this
subparagraph."
3.18. Mr. President, as was describedbyMs Brown, whenthe competent federal authorities
learned thatMr. Breard maynot havebeen toldwhen he wasarrestedthat Paraguay's consulcould - 45 -
be notified, the United States authorities investigated thoroughly. When they concluded that a
violation of Article 36, paragraph 1,probably had occurred, they took action in CO-operationwith
the Commonwealth of Virginia to try to prevent any recurrence. Senior United States officials
apologized to Paraguay,and offeredfurther consultations. As MsBrownjust noted, whenParaguay
recently proposed that the two sides enter into forma1consultations, the United States promptly
agreed to that proposal. Unfortunately, however, and notwithstanding Article II of the Optional
Disputes Settlement Protocol to the Convention, Paraguay chose to bring its action here instead.
3.19.Thus, there is no legal dispute between the United Statesand Paraguay regarding the
need to give notification as provided for under Article 36, that suchnotification was not given, and
conceming the need to take effective steps to prevent recurrence. The sole issue concems the
consequences under international law if an arrested alien is not told that his consul can be notified.
The United States contends that the solution to such a breach of the treaty's requirements is to be
pursued through normal processes of diplomatic apology, consultation and improved
implementation.
3.20. Paraguay, however, asks this Court to impose much more drastic consequences.
Paraguay'sApplication maintains that the necessary legal consequencefor any such breach is that
the ensuing conviction and sentence must be put aside. There is absolutely no support for this
claim in the language of the Convention. The Court should not read into a clear and nearly
universal multilateral instrument such a substantial and potentiallydisruptive additional obligation
that has no support in the language agreed by the parties.
3.21. Mr. President, there are very few situations in which States actually have agreed by
treaty that the failure to observe specific standards can be the basis for appeal to an international
tribunal for possible reversa1 of a conviction or sentence. 1 have in mind here, for example,
regional instruments and institutions such as the European Conventionon Human Rights and the
Strasbourg Court. Where States have elected to create such mechanisms, they have done so - 46-
expressly andwith great precision. Theyhave not created such additionalremedies by indirection
or implication, as Paraguay asks the Court do here. Let me return to the negotiating history.
B. Negotiating History
3.22. Likewise,there is no supportfor Paraguay'sclaim there. Weknow of nothingin the
history - and Paraguay has pointed to nothing -even hinting that the Parties intendedfailure
to comply with Article 36, paragraph 1,to invalidate subsequentinal proceedings.
3.23. The Vienna Convention was negotiated on the basis of drafi articles prepared by the
InternationalLawCommission. Therelevant ILCproposalsdo not containthe obligationto inform
anarrestedpersonthat theirconsul couldbe notified. Thatwas addedat theConference. We have I
found nothing inthe debatesof the conferencesupporting Paraguay's claim,but there area number
of indications to the contrary.
3.24. Article 36 was negotiated withgreat difficulty at the Vienna Conference. The final
version was onlyagreed upontwo daysbeforethe Conferenceended. Somedelegationssupported
theILC's initialdraft of Article 36, whichwould have requiredthat receivingStates automatically
notify sending States' consulsif a nationalwas arrested. A large number of other Statesstrongly
opposed this requirement. They argued,among other things, that it wouldimpose an excessive
administrativeburden on the receiving State and that the national mightnot want his govemment
-
authorities to know about his arrest. (LukeLee, ConsuIarLaw andPractice (1990),pp. 138-
139.)
3.25.Ultimately, a compromise had to be reached. The compromise involveda series of
arnendmentsto the ILC draft. 1will not tto trace al1of these for you, but 1will mention one
because it helpsto showthat Statesat theConferenceclearly did not intendthat failureof consular
notificationwould invalidatesubsequentlegal proceedings. The negotiations beganwiththe ILC
draft providing for consular notification in the case ofst. That was widely criticized as
unreasonably burdensomeand impractical. Accordingly, various narrowing amendmentswere
offered by groups of countries. 3.26. One, offered by Egypt and accepted by the Conference, changed the initial language
to state that the obligation to inform the sending State only arises if the national so requests. The
delegate of Egypt explained his amendment as follows:
"The purpose of the amendment is to lessen the burden on the authorities of
receiving States,especiallyhose which had large numbers of resident aliens or which
received many tourists and visitors.Thelanguageproposedin thejoint amendment
would ensurethattheauthoritiesof thereceivingState wouldnotbe blamed iJo;wing
to thepressure ofwork or othercircurnstances,there was afailureto report the arrest .
of a nationalof the sending State."(Twentieth Plenary Meeting on 20 April, 1963,
United Nations Conference on ConsularRelations, Official Records, p. 82, at para 62.
Emphasis added.)
The explanation of this amendment (which was adopted by the Conference) clearly suggests that
the Conference sawthe normal processes of diplomatic adjustment as the means to addressfailure
of a notification requirement. The Conference did not foreseethat defects of consular notification
wouldresult inthe invalidation of subsequent criminal proceedings. Had the parties thought so,the
many States that already expressed fears about the burden of the notification requirement would
surely have voted down the text that is before you today.
3.27. Other statements during the Conference reinforce that the Parties did not intend the
Convention to alter the operation ofomestic criminal proceedings. The delegate from the USSR
statedthat "themattersdealt with inArticle 36were connectedwiththe criminal law and procedure
of the receiving State, which wereoutside the scope for the codification of consular law" (ibid.,
p.40,para. 3). Thedelegate from Belarus expressedsimilar views, notingthat "the Conferencewas
drafting a consular convention, not an international penal code, and it had no right to attempt to
dictatethe penal codesof sovereign States" (ibid, p. 40, para. 8). Such statementsdirectly conflict
withParaguay's claimtoday. Thus,the negotiatinghistory doesnot supportParaguay's broadview
of the consequences of non-compliance with Article 36, and a variety of statements made during
the debate support a contrary view. - 48 -
C. State Practice
3.28. Likewise, there is no support in state practice for Paraguay's position.As Ms Brown
explained, after the Breard case initially came to the attention of the United States federal
'(.
authorities,the United States Departmentof Statesuweyed the practiceof the Statesparties to the
Vienna Convention. That survey found no State- none - that adopted the position Paraguay
urges on the Court here. Paraguay has referred tono such State practice here.
3.29.The few nationalcourtcasesthat we knowhave consideredthe matterhavenot reached
the result urgedby Paraguay. Lee'streatise ConsularLawandPracticecites an Italiancase where
the Italian authorities failed toprovide the required consular noticeto Yater, a British national.
.rir
According to Lee, the challenge to Yater'sconviction was rejected.
"The SupremeCourt (Cassazione)held that the consular role in assisting the
defenceof his fellownationals under the Vienna Conventionon ConsularRelations is
of 'a complementaxy and subsidiary nature, and does not replace the right of the
accusedto make his own arrangementsfor his own defence'. SinceYater inthis case
had adequately defended himselfduring proceedingsthrougha lawyerchosenby him,
the plea was dismissed." (Luke Lee, ConsularLaw and Practice p. 150-151,citing
Cassazione, 19Feb. 1973,re Yater.Summary and Commentaryin 2 ItalianYb.Int'1
L. 336-9 (1976).)
The issuealso has beenenergetically litigated in United States courts. Indeed, Mr. Donovan,the
distinguished counsel for Paraguay, has been a prominent participant in litigation in the United
States urgingthat this approach be adopted as a matter of United States domesticlaw. However,
no UnitedStates courthasfoundthatthe failureofconsularnotification, standingalone,constitutes I.ir
a sufficientbasis for invalidatinga sentence and conviction.
D. No Injury to Mr. Breard
3.30. Finally, asMs Brownhas explained, thenotion that Mr. Breard sufferedinjurybecause
of anyfailureof consularnotification is speculativeand unpersuasive. Paraguay'sApplicationasks
this Court to indicate provisional measures largely on the basis of some bold assumptions about
what Paraguay's consulmight have done. In doing so, the Application presentsan inflated and
unrealistic description of a consul's functions in criminal matters. A consul is not a defence - 49 -
attorney. Consularprotectiondoes not immunizea nationalfiom localcriminaljurisdiction. What
a consul can do ishelp arrestedpersons arrange means fortheir owndefence. A consulcan notiS,
an arrested person'sfamily, or help to ensure that the defendant has local defence attorneys. A
consuldoes not typicallyretain lawyersto defend her nationals; the United Statesdoes not do so,
and Paraguay has not established that it normally does so either.
3.31. But, as we have shown, Mr. Breard was able to accomplish al1these things quite
effectivelywithouttheassistanceofParaguay's counselwithouttheassistanceof Paraguay'sconsul.
Hespoke English and had lived in the United States since 1986. Afterhis arrest,he was in regular
contact with his family. He was defended by able attorneys throughout his trial and the many
subsequent legalproceedings. A consul could not have done more to enhancethe effectivenessof
Mr. Breard's legal defence.
E. Conclusion
3.32. For al1of these reasons- the lack of anytextual basis in the Convention,the lack of
support in the negotiating history and State practice, and the absence of injury to
Mr. Breard - Paraguay's basic claimin these proceedingslacks legal foundation. Becausethere
is no basis for the remedy Paraguay seeks in the Convention, the Court lacksjurisdiction. The
weaknessof Paraguay's legalclaim is alsoa compellingreason for decliningto indicate provisional
measures.
III. Provisional Measures and The Rights of the Parties
3.33. Mr. President, myfinal section,will be relativelybrief. 1will first addressthe role of
provisional measuresin relation to the protection of the rights of the Parties. will explain why
suchmeasures shouldnot be indicatedina formthat wouldcreate a selectiveor unjust balance with
regardto the Parties. 1will then show how, in decidingwhether to indicateparticularprovisional
measures,the Courtmustconsiderwhetherthose measuresimproperlyprejudgethe outcomeof the
dispute. 3.34. Mr. President,the provisional measuressoughtby Paraguayamountto a determination
on the merits of this case. If the measures soughtby Paraguay are indicated and implemented,
Paraguaywill have won,at leastfor a periodofhowevermany yearsmay berequired for the Court
to arrive with its finaljudgment. Paraguaywill have advanced itskey objective througha hurried
and unbalancedproceedingthat cannotadequately addressthe seriouslegal issuesthat areat stake.
3.35. This cannot be reconciled withthe régimefor provisional measures envisionedunder
Article 41 ofthe Statute. Article41 saysthatthe Courtmayindicate,where circumstancesrequire,
"any provisional measureswhichoughtto betakento preservethe respectiverightsof eitherparty".
Take note: "the respective rightsof either party". Provisional measures shouldnot protect the
I
rights of one party, while disregarding the rights of the other. But that is precisely what is
requested here. As Paraguay has made clear, its goal here is to prevent the operation of the
criminal lawsof the Commonwealthof Virginia. It seeksto do sowherethere is no doubtthat the
accused committed very grave and violent offences,andwhere there havealready been five years
of extensive appellate litigation in national courts. As Mr. Matheson will elaborate in Ournext
presentation, this would significantly impair the rights of the United States to the orderly and
conclusive functioning of its criminaljustice system.
3.36. Moreover, provisional measuresshould notbe indicated in terms or in circumstances
where they constitute a disguised adjudicationon the merits. ProfessorRosenne makes this point '(iI
strongly in his remarkable new treatise:
"The power to indicate provisionalmeasures cannot be invoked if its effect
would beto grant to the applicant an interimjudgment in favour of al1or part of the
claimformulatedinthe documentinstitutingproceedings." (ShabtaiRosenne, TheLaw
And Practice of theInternational Court,1920-1996. Vol. III, p. 1456.)
Nevertheless,this is precisely what Paraguay seeks. Paraguayis askingthis Court for a concealed
adjudication on the merits of this case through the guise of provisional measures.
t
3.37. This is exactlythe type of case JudgeOdawarned of inhis recent essay onprovisional
measures. As he wrote: "Inrecentcases,the actualmatterstobe consideredduringthemerits phase have
been madethe objectof the requestedprovisional measures . ..[Tlheapplicant States
appear to have aimed at obtained interimjudgments that would haveaffirmed their
own rightsand preshapedthe main case." (Oda, "Provisional Measures. The Practice
of the International Court of Justice," inFI& Years of the International Court of
Justice. EssaysinHonour ofSir RobertJennings, Lowe andFitzmauice, eds.,p. 553.)
3.38. Judge Oda goes on to wams of the implications of this, and of the possibilitythat:
"the Court . . . be tempted to deliver an interim judgment under the narne of
provisional measures ... If the tendency is to be for the Court to arrive at a quick
decision on matters relating to the merits, while reserving for the future other much
morejudicious consideration on the question ofjurisdiction as well as the merit.. .,
then the whole matter requires very careful consideration." (Ibid., p554.)
3.39. Mr. President,Judge Oda is right to be concemed,this wholematter doesrequire very
carefulconsideration. Provisionalmeasures shouldnot be usedas a vehiclefor a hasty and legally
unjustified decision on the merits of Paraguay'sclaim. And thus, for al1of the reasons 1 have
indicated- because of the lack ofjurisdiction, because Paraguay'sclaim is unsound in law, and
becausethe requestedprovisionalmeasuresare unbalancedand improperly prejudgethemerits,the
Court should reject Paraguay's request.
3.40. 1thank the Court for its attention during a long presentatio1.now ask that it invite
Mr. Michael Matheson,PrincipalDeputy LegalAdviser,topresentthenextsectionofourargument.
The VICE-PRESIDENT: Thank you Mr. Crook. Mr. Mathesonhas the floor.
Mr. MATHESON:
4.1.Mr. President,distinguishedMembers ofthe Court, itis onceagainmy great honour and
privilegeto appearbefore you on behalf ofthe United States. Mr. Crookhas explainedthe basis
forOurcontentionthat the provisionalmeasures soughtby Paraguayarenotwithin thejurisdiction
of the Court and lack any legal foundation. 1will now explain the reasons for Ourview that the
grantingof the provisionalmeasures sought by Paraguaywould be contraryto the interests ofthe
partiesto the Vienna Convention on Consular Relations,the internationalcommunity as a whole,
and the Court as well. -52 -
4.2. Article 41 of the Statute of the Court provides in part that the Court "shall have the
power to indicate, if it considersthat circumstances so require, any provisional measures which
ought to be taken.. .". This languageclearly indicatesthat the Court may or may not choose to
exercisethis power in a particularcase, dependingon whether it believesthe circumstancesrequire t
it and whether itbelieves the particular measures proposed ought tobe taken. (See, for example,
Aegean Sea ContinentalShelJJ InterimProtection,Order of Il September1976, separateopinion
of President Jiménez deAréchaga,p. 16.)
4.3. It follows from this that the Court should only grant provisional measureswhere it is
satisfied that this would notonly be fair andeficialto the partiesto the immediatedispute, but 'iJ
also would be consistent with the proper role of the Court, the interests of the Parties to the
convention in question, and the good of the general international community.
4.4. In the present case, Paraguayhas asked the Court to suspend decisionsof the criminal
courts of a State. To Ourknowledge,this is the first occasion on which the Court has been asked
to do so. In its request for provisional measures,Paraguay has asked the Court, in a matter of a
few days, to scrutinizeandsuspend foran indefiniteperiodthe considereddecisionsofthe trial and
appellate courtsof Virginiaandthe United States- decisionsthat have beentakenafterextensive
judicial proceedings over a period of years.
4.5. This would be a very seriousstep, and one which couldthreaten seriousdisruption of -
the criminaljustice systems ofthe partiesto the Vienna Convention,and of the workof this Court
as well.
4.6. There are currently over 160partiesto the Vienna Convention,of which over 50 have
adhered to the Optional Protocol on Compulsory Settlement of Disputes. The Parties to the
Protocol includea number of populous States, such as France, Germany,India, Japan,the United
Kingdom and the United States, where very large numbers of foreignnationals have immigrated t
or travelled for various reasons. It is inevitablethat a significant number of crimes will occur in
any populationgroup of sucha size, and in factthis has occurred. It is also to be expectedthat in - 53 -
anumber of these cases, lawenforcementauthorities may commit,or be allegedto have committed,
errors in the process of consular notification called for under the Vienna Convention.
4.7. The question is not whether such errors should be remedied. Rather, it is whether this
should be left to the diplomatic process and to the domestic criminal authorities of the State in
question, or whether this Court should assume the role of a supreme court of criminal appeals to
deal with such cases by staying, reviewingand reversingdomestic court decisions. Once the Court
opens itself to this process, it can be expectedthat a great many defendantswill press the States of
their nationality to take recourse to it. Thiswould includenot only those who received no consular
notification at all, but alsoose who maywish to claimthatthe notification received was deficient,
incomplete,or tardy. It would include notonly those who were genuinely prejudiced bythe failure
of consular notification, but also those who suffered little or no prejudice because they were
nonetheless accorded full assistance of competent counsel and al1the requirementsof due process.
4.8. In principle, if such a remedy were available for violations of the Vienna Convention,
why would it not also be available for alleged violations of other conventions when committed
against foreign nationals in detention forcriminal offenses,such as bilateral treatieswithprovisions
forconsular protection,theInternationalCovenant onCivil andPolitical Rights, orotheragreements
with provisions concerning rights to be accorded to aliens or to any person accused of criminal
offences? If States may ask this Court to stay executions and nullify convictions on the basis of
violations oftheVienna Convention, wouldthey not feel ableto do so underthese otheragreements
as well?
4.9. It is difficult to believe that the parties to these conventions really intended that this
Court serve as a supreme courtof criminalappeals in this manner. It is difficultto believe thatthey
intended to subject their domestic criminal proceedings, which typically include both trial
proceedings and one or more levels of appellate review, to yet another stage of review by an
international tribunal. As Mr. Crook demonstrated, we know this was not the case with respect to - 54 -
theVienna Convention. We also knowthat sucha role was not contemplatedbythe framersof the
United Nations Charter and the Statute of the Court.
B
4.10. Yet this is preciselythe messagethatthe Court wouldgive in grantingthe provisional
t
measures sought by Paraguay in the present case. Delay of the execution of Mr. Breard until the
Court's final dispositionof the case, as Paraguay requests, wouldin practice mean the suspension
of domestic criminalproceedingsforyears,whateverthe finaloutcome. Manyother defendantsin
many Statescould be expectedto demandthe sametreatment,whether the allegedviolationswere
serious or minor, and whether or not those violations led to any significantfailures of due process
in their conviction.
*
4.11. In other words, the indefinite stayof execution requested by Paraguay wouldnot be
a minor measure that simply preserves the status quo. It would be a major and unprecedented
intrusion bythe Court into the domestic criminal process that could have far-reachingand serious
effects onthe administrationofjustice inmany States,andonthe role and functioningof the Court.
4.12. Al1Stateshave compelling interestsin the orderly administrationand finality of their
criminal justice systems, particularly with respect to heinous crimes of the type committed by
Mr. Breard. Al1 States have compelling interests in avoiding external judicial intervention that
would interferewith theexecutionofasentencethat has beenaffirmedfollowinganorderlyjudicial
process meeting al1relevant human rights standards.
4.13. We submitthat the Court should nottake a step having such potentially far-reaching
consequences on the basis of a few days of hurried consideration of a suit filed at the very last
moment. Before taking any action to intrudeintothe criminalprocess of a State,the Court should
require Paraguay to show that it does indeed have a basis for its claim in accordance with the
normal, orderlyprocessof full proceedingsunderPart III ofthe Rules of Court. Inthis connection,
the Court shouldgo through the process called forby Article 63 of the Statuteof the Court, which E
calls for notification of al1 States parties to the Vienna Convention so as to afford them the - 55 -
possibility of intervention or other submission of views to protect their own vital interests in the
interpretationand application of the Convention.
4.14. Given these compellingreasons for refraining from the provisional measures sought,
has Paraguay identifiedany basis for justiQing such an extraordinary remedy? We maintainthat
this is not the case,ince Paraguayhas shown nothingto indicatethat consular notificationwould
have changed the result of the Breard case.
4.15. Neither Mr. Breard's guilt nor the heinous natureof his crime is at issue; he freely
confessed in open court that he hadcommitted the offence. In any case, his guilt was thoroughly
established by compelling material evidence. Paraguay has not taken issue with this in its
Applicationor in its argumentthis moming. There is no question of the execution of an innocent
man.
4.16. Nor is there any evidencethat Mr. Breard was prejudiced inanyway by the apparent
lack of consular notification. He had lived in the United States for six years and spoke English
well. He understoodthe proceedingsbeing conductedand participated activelyin his owndefence.
He had full contactwith his familyandwith persons in Paraguay. He hadcompetentcounsel well
versed in the criminal law of Virginia. He was directly and strongly advised by hisattorneys to
refrain fromthe incriminatingtestimonywhich he insistedon giving. Hisconvictionwasreviewed
and upheld by appellate courts of the United States and Virginia.
4.17. Paraguay's contentionthat the involvement of Paraguayan consular officiaiswould
havechangedal1this is nothingmorethan imaginative, but whollyunsubstantiated,andimplausible
speculation. TheCourtshouldnot engageinan unprecedented interventioninthe domesticcriminal
proceedings of a State on the basis of such implausible speculation. Whata domestic appellate
court wouldnot do, this Court ufortiori should not do. This Court shouldnot serve as a supreme
court of criminal appeals in derogationof the normal operationof domesticcriminal courts.
4.18. Onthe otherhand,we fullyrecognizethat Paraguayhas a legitimateinterestinensuring
that the provisions of the Vienna Convention are properly observed and that there is not a - 56 -
recurrence of the apparent failure of consular notification in the Breard case. Therefore, as
Ms Brown described,the United Stateshas taken extensivemeasuresto ensure future compliance
by State and local authorities.
7
4.19. Further, when Paraguay requested bilateral consultationsunder the Convention, the
United States promptly agreed to consultationson al1issues raised by the Breard case. We were
specifically readyto discuss the possibleproceduralsteps providedfor in Articles II and III of the
Protocolconceming conciliationandarbitration. However, Paraguayinsistedonan immediate stay
ofexecution asapreconditiontorefiainingfiom immediaterecoursetothis Court,whichtheUnited
Stateswas not in a position to grant. The United States nonethelessremains prepared to engage
1
in bilateral consultationsaimed at encouragingmore effective implementation ofthis Convention
by both Parties.
4.20. Mr. President,for al1these reasons,webelievethatthegrantingof provisionalmeasures
sought by Paraguay would have serious negative consequences for the Parties to the Vienna
Convention,for the Court, and forthe international communityas a whole. Weurge the Courtnot
to take such a step, and certainly not after onlya few days to considerthe implicationsof suchan
action. We therefore encourage and urge the Court to exercise its power to deny the measures
requested by Paraguay.
4.21. Once again, 1thank the Court for its attention and consideration of these arguments.
'iiI
1now suggest that the Court recognizethe Agent of the United States,Mr. Andrews, to conclude
the argument of the United States and to present itsFinal Submission. Thank you Sir.
The VICE-PRESIDENT: Thankyou Mr. Matheson. 1cal1on Mr. Andrews, Agentof the
United States.
Mr. ANDREWS:
5.1. Mr. President, this moming the Court asked the Government of Paraguay to provide
copies of two letters, one dated 10 December 1996and one dated 3 June 1997. We would be - 57 -
pleased to provide the unanswered 7 July 1997 letter that the State Department sent to the
Governmentof Paraguay, which was referencedby Ms Brown inher presentation. Mr.President
and Members of the Court, this concludesthe presentationof the United States. The submission
of the United States is as follows: "That the Court reject the request of the Government of
Paraguay for the indication of provisional measures of protection,and not to indicate any such
measures".
5.2.Wethank theCourtfor its kindattentionto ourpresentationsandits considerationof our
arguments.
The VICE-PRESIDENT: Thank you Mr. Andrews. Both Parties have now concluded the
first round of their oral pleadings. The Court will adjournnow and resume at 3.00 p.m. to afford
both Parties an opportunityto reflect. The Court stands adjoumed until3.00 p.m.
TheCourt rose at 12.50p.m.
Public sitting held on Tuesday 7 April 1998, at 10 a.m., at the Peace Palace, Vice-President Weeramantry, Acting President, presiding